‘Reasonable Grounds’ for disciplinary action in the South Australian Country Fire Service

My query relates to the South Australian Fire and Emergency Services Act and Regs. Within the act, the Chief Officer of the CFS is empowered to impose penalty on CFS volunteer members (Div 6 sec 70 (12)) based on “reasonable grounds”.

This sounds fairly loose and subjective and I dont think there is anything else in the act which sheds light on what “reasonable grounds” may be. It appears to give the CO a free hand to do anything he likes unless there is a review mechanism available outside of the CFS

Should the Chief Officer pursue an action against a volunteer individual “unreasonably”, are there any general appeal grounds outside of the CFS, for instance can the Ombudsman review the Chief Officers decision, is this possibly covered within the jurisdiction of the State Admin appeal or any other body?

(d) exercise any other disciplinary power in accordance with the regulations.

(12) Before taking action against a person under subsection (11), the Chief Officer must give the person a reasonable opportunity to appear before the Chief Officer (either personally or through his or her representative) and to make submissions in relation to the proposed course of action.

Subsection 12 is in effect a statement that natural justice must be applied (see also Castle v Director General State Emergency Service [2008] NSWCA 231). Natural justice requires that a person is given the opportunity to address an impartial decision maker before a decision is made and to make submissions as to whether, in this case, there are ‘reasonable grounds’ upon which the decision maker can act, and if there are, what action he or she should take. The decision must be made by an impartial person so if the person appointed to make the decision, whether the Chief Officer or his or her delegate, is not, or might not be seen to be, impartial, they should step aside to allow someone else to make the decision (see the ICAC report into the ‘NSW State Emergency Service – allegations concerning SES Commissioner (Operation Dewar)’).

The question then is, “what are ‘reasonable grounds’”? To have a requirement for ‘reasonable grounds’ is to say that he decision cannot be made on a whim; it does not give the Chief Officer ‘a free hand to do anything he likes’ rather he or she has to have ‘reasons’ for that decision.

In George v Rockett (1990) 170 CLR 104 the High Court had to consider what ‘reasonable grounds’ meant when considering whether or not a Magistrate had reasonable grounds to issue a search warrant. In a unanimous judgment the Court (Mason CJ., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) said (at [8]) ‘When a statute prescribes that there must be “reasonable grounds” for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person… That requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers.’

To put that in our context, the Act doesn’t say that the Chief Officer must have ‘reasonable grounds’ to believe some fact is true, but he or she may only act upon ‘reasonable grounds’ that is he or she must have some reason to make the decision; he or she must be aware of, or be satisfied that there are facts which are sufficient to show that their action was warranted by those facts. So if the allegation was that the person had acted in a way that was improper, whether deliberately, negligently or because they are incompetent, then the decision maker would have to be able to identify what he or she believed had happened and why that justifies the action taken.

As the High Court noted the requirement for reasonable grounds opens the decision to judicial review. If the power was a power to dismiss for any reason that the Chief Officer decided then there could be no review, the Chief Officer could do what he or she liked. As there has to be reasonable grounds though, there can be review under the relevant Administrative Review processes in the State (for South Australia see the Legal Services Commission of South Australia, ‘South Australian Ombudsman’ and ‘State Administrative Appeals’’).

Ultimately because the Chief Officer is making a decision according to law, a court of law (in South Australia, the Supreme Court) could be called upon to review the decision (see South Australia Legal Services Commission of South Australia ‘Judicial Review’ and Supreme Court Civil Rules 2006, rr 199-201). The judge’s task would be to determine whether there were ‘reasonable grounds’ for the decision not whether he or she would have made the same decision. The question for the judge would be ‘did the decision maker have some reasons, some evidence to establish the facts upon which he or she relied and some reason for making the decision he or she made?’ If the answer to that is ‘yes’ then the decision would be expected to stand.